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Too Poor to Make Bail? They’ll Cage You for That: Lawsuit Exposes Horrors of the US InJustice System

A Texas jail has been caging people who are too poor to afford bail, according to a new lawsuit.

Harris County Jail – the largest in Texas and the third largest in the US – is accused of keeping most of its incarcerated population locked up for misdemeanors because they can’t afford bail or trial.

Now, Harris County, Sheriff Ron Hickman, and five bail-hearing magistrates are being sued by the human rights group Equal Justice Under Law for discriminating against poor prisoners.

In Harris County, 77 percent of the jail population are people who have yet to be convicted of crimes, who are in jail because they cannot afford to get out. A recent study by Gerald Wheeler, retired director of Harris County Pretrial Services and a doctoral researcher, found that 81 percent of people charged with misdemeanors will spend time in jail, and of those, a quarter of them can’t afford bail costing $500 or less. Only 7 percent were released on a personal bond.

The lawsuit, filed on May 19, alleges that Harris County’s use of a strict bail schedule is unconstitutional, given that magistrates rarely ever stray from it and therefore almost always fail to consider someone’s ability to pay, as is required by law.

Equal Justice Under Law attorney Elizabeth Rossi told the Houston Press that she and other lawyers sat in on bail hearings about 20 different times. The hearings only lasted about one minute, and the magistrate never even gave defendants a chance to speak, she said.

In the lawsuit, the attorneys note that one magistrate even told someone that a bail hearing was “not the forum” for discussing his ability to pay bail. When another asked, “Can I say something?” the magistrate responded: “You can talk to me all you want, but it’s not going to change the outcome. I’m setting it according to the schedule.”

Rossi said that after watching enough of them, the “banality” of the hearings struck her:

Everybody who’s involved in that process, from the judge to the deputies, just looked at it as another routine doldrum chore they have to do, and no one is thinking about the individual standing in that red square, maybe in an orange jumpsuit, who’s about to be told whether he’ll be released to his family or not based on whether he can pay an arbitrary dollar figure.

At this point, I’d like to remind readers that the MAJORITY of these people have not been even charged with a crime, and many of them are accused of committing misdemeanors…most of which are victimless “crimes.”

Let’s look at the cases of two of the people who are being represented in this lawsuit, for example.

Maranda O’Donnell, age 22, was driving to her mom’s house to pick up her four-year-old daughter. She got pulled over and was arrested for driving with an invalid license. She couldn’t afford the $2,500 bail – an amount set according to a pre-determined schedule that does not consider individual circumstances. O’Donnell had been living with a friend because she could not afford her own place, and had just started a new job when she was hauled off to jail.

Loetha McGruder was driving through Jacinto City on May 19 when she was pulled over by a police officer for driving about 10 miles an hour over the 40-mph speed limit. Instead of getting a ticket, the young pregnant mother of two found herself locked up in the Harris County jail for five days on a misdemeanor charge – failing to present proper ID to the officer – simply because she couldn’t afford the bail.

Court records show that a Harris County hearing officer did not indicate on a form why he set her bond at $5,000 – the maximum amount Harris County designates for misdemeanors. McGruder had no criminal history and two young children, the elder suffering from Down syndrome.

And he never asked McGruder if she could afford to pay bail – though under both federal and state laws magistrates are required to consider individual defendants’ cases individually – including their ability to post bail.

Robert Ryan Ford, a Houston man jailed after being charged with shoplifting about $100 in cosmetics, is another victim named in the lawsuit.

Attorneys for Equal Justice Under Law called for O’Donnell’s release, and she was let go from jail two days after her arrest. They also requested a constitutional bail hearing, during which a judge would consider her ability to pay the bail assigned to her.

They are now asking for the same right for more than 500 detainees in Harris County.

An investigation by the Houston Chronicle found that 55 pretrial detaineesdied in Harris County custody from 2009-2015, including “offenders” jailed for misdemeanor crimes like trespassing.

Last month, Patrick Joseph Brown was beaten to death by two inmates jailed on felony charges. Brown was detained because he could not afford the $3,000 bail he was slammed with after allegedly stealing a guitar – a misdemeanor. One of the inmates charged in the assault on Brown was allowed to post bond and leave the jail because investigators had not realized a crime had been committed and had not reviewed the surveillance video, the department confirmed.

When Brown’s death was reported in April, Hickman said his jail staff was short by several hundred jailers and noted that operations are being continued by ordering jailers to report for mandatory overtime.

Jose Fierros, 58, was also being held there on a misdemeanor charge – unlawfully carrying a pocketknife (what does that even mean?). Magda Fuentes said Fierros, her uncle, was approached by Houston police officers on the morning of June 17, 2015. She said he’d been sitting in a park, reading a newspaper while waiting to be picked up by a friend for a construction job. Fierros was arrested and held on $1,000 bond. After only four days in custody, he died from blunt-force head trauma.

In 2015, Patrick Green died of meningitis while caged in the Harris County Jail. A lawsuit filed in April says Green was sick in his cell for at least two days, wracked with fever, chills, and a splitting headache before medical workers finally took him to the jail’s clinic. The suit says that despite desperate pleas from other inmates to help him, Green was ignored until it was too late. His was one of 16 deaths in the jail in 2015, at least 10 which were due to medical issues, according to the Texas Commission on Jail Standards. Green was a recovering heroin addict who had relapsed and was locked up for violating his probation. Last year, his parents told the Chronicle that their son pleaded guilty to the charge and decided to serve out his sentence because he knew he needed to confront the situation “head-on.”

Tragedies like these are not limited to Harris County, of course.

In March, the US Department of Justice, noting the many jail systems around the US that follow similar “pay-or-stay” bail schedules, sent guidelines to local courts denouncing debtors’ prisons.

The DOJ letter said that funding municipal operations on revenue gleaned from fines is unconstitutional, and that courts should not jail people without proving the detainee “willfully” refuses to pay a fine. The guidance urged courts to seek alternatives to locking up those unable to pay.

Prisons and jails in the US are overcrowded, understaffed, unsanitary, and are filled with people who have been charged with victimless crimes.

Here are the (terrifying) facts:

The US has the largest prison population in the world, and the second-highest per-capita incarceration rate, behind Seychelles (which in 2014 had a total prison population of 735 out of a population of around 92,000).

With only 5 percent of the world’s population, the US has more than 20 percent of the world’s prison population.

One in 110 adults are incarcerated in a prison or local jail in the US. This marks the highest rate of imprisonment in American history.

One in 35 adults are under some form of correctional control, including prison, jail, parole, and probation populations. In 2013, a total of 6,899,000 adults were under correctional control.

Although debtor’s prisons supposedly no longer exist in the US, residents of some states can still be incarcerated for debt as of 2016.

According to a 2014 Human Rights Watch report, “tough-on-crime” laws adopted since the 1980s have filled US prisons with mostly nonviolent offenders. Much of this is due to the mandatory sentencing caused by the War on Drugs.

Violent crime was not responsible for the quadrupling of the incarcerated population in the United States from 1980 to 2003. Violent crime rates had been relatively constant or declining over those decades. Again, we have the War on Drugs to thank for high rates of people being caged for non-violent crimes.

According to a 2012 Vera Institute of Justice study, the number of those incarcerated has increased by over 700 percent over the last four decades. The cost to the taxpayer? $39 billion.

People caged in for-profit prisons serve as slaves for major corporations. Inmates work eight hours per day for major corporations such as Chevron, Motorola, Nordstrom, and Target, yet only earn up $1.25 an hour. In addition, companies that provide services like phone calls overcharge prisoners on even the most basic services, making hundreds of millions in profits annually.

According to the DOJ, average of about a dozen inmates die each day. About 4,400 jail and prison inmates die every year. Most of these occur in state prisons. Heart disease, suicide, and cancer are the leading causes of death.

About one in three suicides in local jails happen within a week of the caging. More than 70 percent of the inmates who died in local jails were not convicted of anything at the time they died.

Did you know you probably should be in jail? By one legal expert’s estimate, as many as 70 percent of Americans have committed a crime that could land them in prison. In fact, according to John Baker, a retired Louisiana State University law professor, “There is no one in the United States over the age of 18 who cannot be indicted for some federal crime.”

It’s impossible to keep track of the absurd complexity of our federal criminal law alone, which now lists more than 4,500 crimes—plus tens of thousands of additional agency rules whose violation can be punished as a criminal offense. At any given point, you could be doing something that logic and conscience suggest is perfectly harmless, only to discover that Uncle Sam disagrees…and we haven’t even gotten to state and local laws!

Over-criminalization means ordinary Americans are tangling with the legal system more often than they ought, and once that contact has been made, draconian sentencing laws mean there’s a real chance they’ll be in prison way too long for the offense in question.

Mandatory minimum sentencing is the main culprit here, as it requires judges to hand down lengthy sentences regardless of the context of the crime in question. As conservative writer George Will has argued, this policy “has empowered the government to effectively nullify the constitutional right to a trial.”

On the opening day of law school, I always counsel my first-year students never to support a law they are not willing to kill to enforce. Usually they greet this advice with something between skepticism and puzzlement, until I remind them that the police go armed to enforce the will of the state, and if you resist, they might kill you.

A citizen who wants to abide by the law has no quick and easy way to find out what the law actually is — a violation of the traditional principle that the state cannot punish without fair notice.

In addition to these statutes, he writes, an astonishing 300,000 or more federal regulations may be enforceable through criminal punishment in the discretion of an administrative agency. Nobody knows the number for sure.

Every day, there are about 500,000 people in America being caged solely for being too poor to pay the extortion fee for their release. The “legal” system in the US is supposed to guarantee that everyone is presumed innocent until proven guilty beyond a reasonable doubt.

Those who can afford their freedom pay for it, while others sit in jail pending trial simply due to their inability to pay. Such wealth-based detention has disastrous consequences: overcrowding of local jails, lost jobs, lost housing, shockingly poor sanitation and medical care, broken families, and drained local budgets. In many cases, an arrestee may be held longer in jail while awaiting trial than any sentence she or he would likely receive if convicted, causing even innocent people accused of crimes to plead guilty to offenses that they did not commit in order to cut short lengthy pretrial detention. Individuals who are detained are not able to assist their attorneys in the investigation of the charges against them, resulting in wrongful convictions and longer sentences.

The toxic blend of too many laws, corrupt “enforcers,” out-of-control cops, exorbitant fees and fines, and the War on Drugs has proven to be a recipe for disaster for US citizens.

As terrible as this news is, I’ll leave you with what may be a glimmer of hope from the Houston Press:

Since the start of 2015, Equal Justice Under Law has filed 17 lawsuits across the country, including this one, seeking to end the cash bail system. Where it has won, local jurisdictions — mostly midsize cities such as Montgomery, Alabama, or Velda, Missouri — have been forced to upend their bail systems and entirely ditch their existing bail schedules, which were found to be unconstitutional.

The group has won eight cases so far, and hasn’t yet lost a single one.